NO. 12-01-00005-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHARLES BATES,§ APPEAL FROM THE 114TH
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ SMITH COUNTY, TEXAS
Charles Bates appeals his conviction for the offense of possession of a controlled substance, methamphetamine, in an amount of four grams or more but less than 200 grams, for which he was sentenced to life in prison as an habitual offender. In three issues, Appellant contends that he received ineffective assistance of counsel at trial and that the evidence is both legally and factually insufficient to support his conviction. We affirm.
Background
On February 23, 2000, Special Agent Phillip Rust of the Federal Drug Enforcement Administration received information from a confidential informant that narcotics activity was afoot in rural Smith County. In an unmarked car, Agent Rust drove toward the place where the informant had indicated the activity was occurring and met the vehicle which the informant had described. Agent Rust turned on the flashing lights attached to his windshield and attempted to stop the suspects' car. The suspects' car increased its speed and did not stop for over a mile. By this time, several narcotics officers were in pursuit in separate, unmarked cars.
Finally, the suspects' car turned into a private drive, traveled about fifty yards, and then stopped. Appellant got out of the front passenger seat and ran. Officer Harold Jones ("Jones") and another officer gave chase on foot, yelling, "Stop. Police." They chased Appellant for approximately one hundred yards before catching him behind a residence. After handcuffing Appellant, Jones patted him down and discovered $1200 in cash and three baggies containing a combined total of slightly more than one gram of methamphetamine in Appellant's pockets.
Agent Rust arrested the driver of the car, Diedra Green ("Green"), and the backseat passenger, Jamie Moore ("Moore"). Agent Rust observed a Pyrex container in the front floorboard of the car with a "wet and a dry substance" in it which he believed to be indicative of the manufacture of methamphetamine. Upon searching the trunk of the car, the agents discovered many items typically used in the manufacture of methamphetamine: lye, dry gas, red phosphorous, Coleman camp fuel, acetone, muriatic acid, paint thinner, pseudoephedrine, iodine crystals, coffee filters, lighter fluid, coffee pots and a portable electric range among other things. The agents also discovered methamphetamine weighing approximately 30 grams in the car.
Moore testified at Appellant's trial that two days prior to being arrested, she, Green, and Appellant had shopped for the various items which the narcotics officers found in the car with the intention of using those items to manufacture methamphetamine. Moore told the jury that she was present at a vacant house in rural Smith County over a period of approximately two days while Green and Appellant manufactured methamphetamine. Moore further testified that the grandson of the owner of the house asked the three of them to leave, so Green and Appellant packed all of the items used to manufacture the methamphetamine and the methamphetamine into Green's car. Moore told the jury that the three of them had just left the house where the manufacturing had taken place when the officers got behind them and attempted to stop them.
Appellant did not testify at trial.
Ineffective Assistance of Counsel
In his first issue, Appellant contends that he was denied the effective assistance of counsel at trial. The standard of review for ineffective assistance of counsel is enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The Strickland test requires a two-step analysis:
- Did the attorney's performance fail to constitute "reasonably effective assistance," i.e., did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms?
- If so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings could have been different?
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Tong, 25 S.W.3d at 712. Appellant is required to establish his claims by a preponderance of the evidence. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. Our review of counsel's representation is highly deferential. Tong, 25 S.W.3d at 712. We indulge a strong presumption that counsel's conduct falls within a wide range of reasonably professional representation. Id. The burden is on Appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.-Texarkana 2000, pet. ref'd). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Thompson, 9 S.W.3d at 813. In other words, even if trial counsel's alleged deficiencies satisfy the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186.
In the case at hand, Appellant alleges specifically that trial counsel was ineffective for failure to file a motion to suppress the drug evidence recovered from Appellant's person. When alleging ineffective assistance of counsel for failure to pursue a motion to suppress, an appellant is required to prove by a preponderance of the evidence that the motion to suppress would have been granted. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Appellant filed a pro se motion for new trial alleging, among other things, that counsel was ineffective for failure to file a motion to suppress. However, Appellant withdrew his motion for new trial and no hearing was had on it. Therefore, we can only look to the record of Appellant's trial when making our inquiry into the effectiveness of counsel.
Appellant briefs this issue as if the evidence was discovered on his person during a Terry frisk. Jones did testify that he discovered the drug evidence on Appellant's person while patting Appellant down for weapons after Appellant had already been handcuffed. However, Jones further testified that he found the drugs on Appellant's person "during [Appellant's] arrest," after Appellant ran from him and another officer who were yelling, "Stop. Police."
Under Article 14.01 of the Texas Code of Criminal Procedure, a peace officer may arrest a person without a warrant if that person commits an offense in the presence or view of the peace officer. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977); Stull v. State, 772 S.W.2d 449, 452 (Tex. Crim. App. 1989). A person commits the offense of evading arrest if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him. Tex. Pen. Code Ann. § 38.04(a) (Vernon Supp. 2003). Because Jones personally witnessed Appellant committing the offense of evading arrest or detention, Jones' arrest of Appellant was lawful, (1) and, therefore, the trial record supports the State's position that the search of Appellant's person was conducted incident to a lawful arrest.
A search incident to arrest is lawful. Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969); State v. Ballard, 987 S.W.2d 889, 893 (Tex. Crim. App. 1999); Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1987). An arresting officer may search an arrestee's person to discover and remove weapons and to seize evidence to prevent its concealment or destruction. Chimel, 395 U.S. at 762-63, 89 S. Ct. at 2040. It is irrelevant that the arrest occurs immediately before or after the search, as long as sufficient probable cause exists for the officer to arrest before the search. Williams, 726 S.W.2d at 101 (citing Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980)).
Based on Jones' testimony that he found the drugs on Appellant's person "during [Appellant's] arrest," we conclude that a motion to suppress the drug evidence found on Appellant's person would not have been granted because Jones searched Appellant incident to a lawful arrest. Consequently, we cannot say that there is a reasonable probability that the result of the trial would have been different but for counsel's failure to file a motion to suppress. Because Appellant has failed to satisfy his burden under Strickland, we cannot hold that trial counsel was ineffective. Appellant's first issue is overruled.
Sufficiency of the Evidence
In his second and third issues, Appellant contends that the evidence is both legally and factually insufficient to support his conviction. The jury charge in the instant case authorized conviction if Appellant was the principal actor or a party to the offense of possession of a controlled substance.
A person commits the offense of possession of a controlled substance if he knowingly or intentionally possesses a controlled substance, including methamphetamine, unless he obtained the controlled substance through a valid prescription of a practitioner acting in the course of professional practice. Tex. Health & Safety Code Ann. § 481.115(a) (Vernon Supp. 2003). A person may not be convicted of possession of a controlled substance, as a principal actor, unless (1) he exercised actual care, control, or custody of it, and (2) he was conscious of his connection with it and knew what it was. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Roberson v. State, 80 S.W.3d 730, 734-35 (Tex. App.-Houston [1st Dist.] 2002, no pet.). One need not have exclusive possession of the drug. Roberson, 80 S.W.3d at 735. To prove that a defendant is criminally responsible for possession of a controlled substance as a party, the evidence must first show that another person possessed the contraband. Id. Then the State must show that, with the intent to promote or assist the commission of the offense, Appellant solicited, encouraged, directed, aided, or attempted to aid the other's possession. Tex. Pen. Code Ann. § 7.02(a)(2); id. Mere presence at the scene of a crime is not alone sufficient to prove that a person is a party to the offense, although it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987); Barnes v. State, 62 S.W.3d 288, 297 (Tex. App.-Austin 2001, pet. ref'd). In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). Intent may be inferred from circumstantial evidence such as the acts, words, and conduct of the accused. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).
When, as here, the accused is not in exclusive possession of the place where contraband is found, there must be additional independent facts and circumstances which affirmatively link the person to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981); Roberson, 80 S.W.3d at 735. An affirmative link generates a reasonable inference that the accused knew of the contraband's existence and exercised control over it. Johnson v. State, 658 S.W.2d 623, 627 (Tex. Crim. App. 1983); Roberson, 80 S.W.3d at 735. Proof of an affirmative link between the accused and the contraband is mainly needed to establish knowledge or intent. Roberson, 80 S.W.3d at 735.
The courts have considered a number of factors to be "affirmative links," i.e., facts and circumstances in addition to mere presence that raise a reasonable inference of the accused's knowledge and control of the contraband, including whether the defendant was present when the search was executed; whether the contraband was in plain view; whether the contraband was close and accessible to the defendant; whether the defendant was under the influence of a controlled substance at the time of his arrest; whether the defendant possessed other contraband when arrested; whether the defendant made incriminating statements when arrested; whether the defendant attempted to flee; whether the defendant made furtive gestures; whether the odor of the contraband was present; whether other contraband or drug paraphernalia was present; whether the defendant owned or had a right to possess the place where the drugs were found; and whether the drugs were discovered in an enclosed space. E.g., Green v. State, 892 S.W.2d 220, 222 (Tex. App.-Texarkana 1995, pet. ref'd). The courts have continued to expand the list of factors considered to be affirmative links, often stressing that the number of factors presented is less important than the totality of the circumstances linking the defendant to the contraband. Bethancourt-Rosales v. State, 50 S.W.3d 650, 654 (Tex. App.-Waco 2001, pet. ref'd).
Our analysis of the sufficiency of the evidence in this case also turns on an application of the accomplice witness rule. Our Code of Criminal Procedure provides that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). The corroboration is not sufficient if it merely shows the commission of the offense. Id. The test for weighing the sufficiency of corroborative evidence is to eliminate from consideration the testimony of the accomplice witness and then examine the testimony of other witnesses to ascertain if there is evidence which tends to connect the accused with the commission of the offense. Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988). The non-accomplice evidence need not be sufficient in itself to establish the accused's guilt beyond a reasonable doubt. Id. at 126. Nor is it necessary for the non-accomplice evidence to directly link the accused to the commission of the offense. Reynolds v. State, 489 S.W.2d 866, 872 (Tex. Crim. App. 1972). The accomplice witness rule is satisfied if there is some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994); Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992).
Legal Sufficiency
The standard of review for legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). An appellate court should uphold the jury's verdict "unless it is found to be irrational or unsupported by more than a mere modicum of evidence." Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). We must first determine if there is some non-accomplice evidence which tends to connect Appellant to the commission of the offense. The Pyrex dish containing remnants of the manufacture of methamphetamine was in plain view in the passenger compartment of the car, close by and accessible to Appellant. Appellant had methamphetamine on his person when he was arrested. Though Appellant was not the driver of the car, he was surely aware, as a passenger, that the car was pursued by a vehicle with flashing red and blue lights for some distance because Appellant fled when Green finally stopped the car. This evidence affirmatively links Appellant with the commission of the offense even without Moore's testimony. Coupled with Moore's testimony that Appellant and Green manufactured the methamphetamine and loaded it and the other contraband into the car, the evidence of Appellant's actions before, during, and after the narcotics officers stopped Green's car, viewed in the light most favorable to the verdict, supports a jury verdict either that Appellant, Green, and Moore were acting together, each contributing some part toward the execution of their common purpose of knowing or intentional possession of the methamphetamine in the car, or that Appellant, as a principal actor, knowingly or intentionally possessed the methamphetamine in the car. Therefore, we hold that the evidence is legally sufficient to support Appellant's conviction. Appellant's second issue is overruled.
Factual Sufficiency
When reviewing the factual sufficiency of the evidence, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We review the fact finder's weighing of the evidence and are authorized to disagree with the fact finder's determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). This review must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility to be given to the testimony of the witnesses. See Jones, 944 S.W.2d at 648. Ultimately, a conviction will be set aside "only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." Ortiz v. State, No. 73692, 2002 WL 31116634, at *5 (Tex. Crim. App. Sept. 25, 2002).
We begin our factual sufficiency analysis by noting that there is some non-accomplice evidence which tends to connect Appellant to the commission of the offense: the Pyrex container in plain view and accessible to Appellant, the car chase, Appellant's flight, and the subsequent discovery of methamphetamine on Appellant's person. Next, we consider this evidence along with Moore's testimony that Appellant and Green manufactured the methamphetamine and loaded it into Green's car. We conclude that the evidence supporting Appellant's guilt is neither so obviously weak as to undermine confidence in the jury's verdict nor outweighed by contrary proof. We hold that the evidence is factually sufficient to support the conviction. Therefore, Appellant's third issue is overruled.
The judgment of the trial court is affirmed.
SAM GRIFFITH
Justice
Opinion delivered December 18, 2002.
Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.
(DO NOT PUBLISH)
1. It is irrelevant whether Appellant could articulate a defense to the offense of evading or whether he was ever charged with or convicted of that offense. See Caballero v. State, 881 S.W.2d 745, 749-50 (Tex. App.-Houston [14th Dist.] 1994, no pet.).